Chief T. A Orji & Anor. V. Peoples Democratic Party & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

On 14/4/2007 Independent National Electoral Commission (INEC) conducted election to the Abia State House of Assembly in Ukwa West Constituency. The Appellant and the 1st Respondent (Ikpechukwu Onuoha) contested that election with several other candidates. At the end of the poll INEC declared Appellant as duly elected and returned. Aggrieved the 1st Respondent, as petitioner, approached the Governorship/Legislative Houses Election Tribunal sitting at Umuahia, (hereinafter called the Tribunal) for redress. He sought reliefs inter alia that it be determined by the Tribunal that the 1st Respondent/Appellant did not score the majority of lawful votes cast in the said election; and that the Tribunal should declare that he was validly and duly elected or returned in the election having scored the majority of lawful votes cast in the said election, etc.

Pleadings were filed and exchanged at the Tribunal by the parties to the petition. At the pre-trial session all documents pleaded, including the polling station/unit results given to the Petitioner’s agents (Exhibits C1-C57 and D), the unit results given to the police (Exhibits YYY series), the results of the election duly certified by INEC and other documents were tendered and admitted in evidence. At the close of the pre-trial session INEC and its officials/agents (i.e. 2nd – 105th Respondents in the petition) indicated that they would neither tender documents nor call thirty witnesses. They did not tender any documents nor call witnesses to prove their reply to the Petition at the subsequent trial. Their counsel though participated in the proceedings by cross-examining witnesses called by the Petitioner and the 1st Respondent/Appellant. At the close of the trial all Counsel, including Counsel for INEC and its staff/agents, filed and exchanged written addresses which they subsequently adopted as their arguments in the petition at the Tribunal. In its considered judgment delivered on 21/1/2008 the Tribunal allowed the petition, reversed the return of the Appellant and in its stead returned the 1st Petitioner/Respondent as the person candidate who won the election.

Aggrieved by the decision of the Tribunal the 1st Respondent in the petition, now Appellant, through his Counsel, J.T.O. Ugboduma, Esq lodged his appeal (CA/PH/EPT/228/2008) on 12/2/2008 against the decision of the Tribunal. INEC and its officials (the 2nd – 105th Respondents in the petition) also through their Counsel, G. B. Obi, Esq. lodged their appeal (CA/PH/228A/2008) on 15/2/2008 against the decision of the Tribunal. The two appeals were on 19/6/2008 consolidated for ease and convenience. They however retain their separate and distinct identities. In this judgment they will be treated as such. The two appeals were argued on 14/10/2008. Counsel for all parties in the two appeals adopted their respective briefs as their respective arguments in the appeals.

CA/PH/EPT/228/2008

In addition to the written briefs filed and exchanged Ugboduma, Esq. for the Appellant filed list of additional authorities namely:-

NKIRU ONYEJIOCHA v. MADUAKO (unreported of this court no CA/PH/EPT/54A/2008 of 14/7/2008) and ABARAONYE v. EMEANA (2008) 10 NWLR (pt. 1096) 496 at 509 in respect of this contention that it is only INEC’s duly certified results, and not the party agents results, that are admissible in evidence. These additional authorities including UGOCHUKWU V. ORJI (unreported No.ABS/GOV/EPT/4 & 9/07 of 25/2/2008 by the Tribunal) cited in the Appellant’s amended brief are all in respect of Appellant’s issue No 1. Appellant’s counsel graciously supplied the certified True Copies of the reported authorities. Mr. BALOGU, counsel for the 1st and 2nd Respondents (Petitioners at the Tribunal) in his oral argument, in reply, submitted that the said authorities are in applicable to the present appeal. He then urged us to act on the additional authorities filed by them, Mr. Obi, counsel for 3rd – 105th Respondents (and 2nd – 105th Respondents at the Tribunal) had nothing further to urge in the oral addresses apart from adopting his brief.

The 1st and 2nd Respondents filed preliminary objection to all, except ground 9, of the Appellant’s grounds of appeal. The preliminary objections and the arguments thereon are incorporated in to the 1st and 2nd Respondents, Brief of Argument. The Appellant in the Appellant’s amended Reply Brief responded to each objection raised in the 1st and 2nd Respondents preliminary objection. I have given careful consideration to the preliminary objections and the Appellant’s response thereto.

On ground 1 of the Appellant’s grounds of appeal the objection is that the complaint in the ground does not represent the holding or decision of the Tribunal, and also that particulars of error (a) – (h) are incompetent. They are said to be narrative and argumentative. In the main, ground 1 complains that “the Tribunal erred in law when it held that the 1st petitioner/Respondent scored majority of lawful votes cast at the election by relying on Exhibit; C1 – C57 which were inadmissible evidence being hearsay”. No issue of Exhibits C1 – C57 being “inadmissible evidence being hearsay “arose at the trial and the judgment of the Tribunal. The objection is well founded. It is trite that ground of appeal must derive from the ratio decidendi of the decision of the Court in the judgment appealed against. See CHRISTABEN GROUP LTD. v. ONI (2008) 11 NWLR (pt.1097) 84 at 105; OBI v. INEC (2007) 11 NWLR (pt. 1046) 560; CO-OP, & COMMERCE BANK v. EKPERI (2007) 3 NWLR (pt.1022) 493.

Contrary to Appellant’s Counsel’s submission that at the trial 2nd – 105th Respondents raised this issue of inadmissibility of Exhibits C1-C57 at pages 1144 – 1146 and the Petitioners/Respondents respondent to it at pages 1188-1190 of the record I am of the view, upon reading the record, that the issue raised on Exhibits C1 – C57 at the trial was about the probative value to attach to the exhibits since they were not produced by the Petitioners agents at the polling stations who allegedly collected them from the presiding officers. There is a world of difference between admissibility or inadmissibility of a piece of evidence and the probative or weight value to be attached to it. The objection is hereby sustained. Ground 1 of the Appellants grounds of appeal is hereby struck out.

On ground 2 the objection is that the complaint is directed against a comment made obiter by the Tribunal and also that particulars of error (b) – (n) are incompetent for being narrative, argumentative, vague,verbose and imprecise.

The ground of appeal reads thus:-

The Honourable Tribunal erred when it held the in this petition where the Petitioners alleged falsification of results, it was not an issue that calls for determination as to which of the two sets of results tendered by the Petitioners was the genuine result recorded in the election.

Inspite of this comment the Tribunal at page 11431 of the record agreed to “equally consider same as the second issue for determination as formulated by 2nd – 105th Respondents.” That takes care of this objection. I agree with the 1st – 2nd Petitioners/Respondents that the complaint derives from the comment the Tribunal made obiter. The ground of appeal, being incompetent, is hereby struck out.

The attack on ground 3 is that it misrepresents the holding of the Tribunal on this point and that particulars (b) – (i) are all incompetent for being argumentative, vague, verbose, imprecise and conclusive. I have considered the objection and the response of the Appellant vis-a-vis the ground of appeal and the judgment of the Tribunal, particularly pages 1439 and 1440. The main complaint in my view flows from the judgment. I however agree with Counsel for 1st and 2nd Petitioners/Respondents that particulars (C), (D) (I), (J) are on their own. They are unrelated to the main complaint in the ground. The penalty for particulars of error not flowing from or relating to the ground of appeal is striking out of the unrelated particular(s): See STIRLING CIVIL ENG. NIG. LTD. v. YAHAYA (2002) 2 NWLR (pt.750) 1 at p.15 relying on HONIKA SAWMILLS LTD v. MARY OKOGIE HOFF (1994) 2 NWLR (pt.326) 252 at 262. It was further held in STIRLING ENG. NIG. LTD. v. YAHAYA (supra) that where one or more particulars are rendered bad the remaining particulars serve no useful purpose because the court will not carry out a surgical operation on the ground of appeal by excising the bad ones.

In addition particulars (C), (D), (I), (J), (K) and (L) of ground 3 are argumentative and conclusions. These particulars are incompetent. They are hereby struck out and so also the entire ground 3; STIRLING ENG. NIG. LTD. v. YAHAYA (supra).

The objection to ground 4 of the grounds of appeal is that it does not reflect the actual holding of the Tribunal, particular (a) is said, rightly, not to be a particular of error, while particular (h) is said to relate to issues not canvassed at the Tribunal. Particulars (b) – (h) are said to be argumentative, verbose and conclusive. The appellant specifically concedes that particular (g) is unrelated to issues canvassed at the Tribunal. The concession is fatal to the entire ground in view of the rule in STIRLING ENG. NIG. LTD. v. YAHAYA (supra). By their very nature there can not be more one ground of appeal or complaint in one ground of appeal. See NWADIKE v. IBEKWE (1987) 4 NWLR (pt.67) 718 at 744 G. Particular (h) in addition is a conclusion. Ground 4 of the grounds of appeal is incompetent and it is accordingly struck out.

Ground 5 is said to be incompetent because particulars (b) – (h) are defective. 1st and 2nd Respondents say that particular (b) amounts to challenge of the record, while particulars (c) – (h) are argumentative, speculative, think so. He submitted that there was no challenge to the record. The crux or fulcrum of the complaint in ground 5 is that the Tribunal rejected results tendered and admitted in evidence by the 1st Respondent/Appellant on the ground that they were not signed by distinct presiding officers as required by Section 64 (1) of the Electoral Act. Therefore particular (f) complaining that the Tribunal raised this issue suo motu without hearing the 1st Respondent/Appellant is unrelated to the main complaint. It is a complaint that he was denied fair hearing. Particular (f) is bad and the entire ground 5 is therefore caught by the rules in STIRLING CIVIL ENG. LTD. v. YAHAYA (supra) and NWADIKE v. IBEKWE (supra). Ground 5 of the grounds of appeal is hereby struck out.

Ground 6 in the main complains that the Tribunal erred in law when it discountenanced the evidence of RW.8 relating to why INEC used result sheets in forms EC8A (1) with similar serial numbers on the ground that it was not pleaded contrary to the pleadings. 1st and 2nd Respondents object to the ground specifically because particular (c) allegedly relates to issue not canvassed at the Tribunal. Appellant’s reply is that the issue borders on implied joinder of issues by dint of Order 20 rule 10 (2) (a) of Federal High Court Rules. The objection is not well founded. I also do not buy the argument those particulars (b) – (i) am argumentative and conclusive. The objection to ground 6 is hereby overruled.

Ground 7 complains that the Tribunal erred in law for holding that the Petitioners had proved “that the election was void by corrupt practices and non-compliance with the provisions of the Electoral Act, 2006 which affected the outcome of the election.” The ground is said to have totally misrepresented the holding of the Tribunal and that it does not relate to a specific finding of the Tribunal. Appellant referred to pages 1432 and 1435 to submit that Ground 7 relates to specific holding of the Tribunal. I agree with the objectors that the Appellant in formulating this ground has misrepresented the holding or decision of the Tribunal. Secondly, reading particulars (b), (c), (d) and (e) together would seem to suggest that the Appellant is raising an incongruous complaint about the standard of proof having made allegations of crime. That is completely unrelated to the complaint in ground 7. The ground of appeal is therefore incompetent and it is hereby struck out.

Finally, it is ground 8 which complains that the Tribunal “erred in law when it relied on hearsay, contradictory, incredible and uncorroborated evidence of Petitioners witnesses to hold that there was no election in Obuzor, -“etc” due to violence”. 1st and 2nd Respondents object to the ground for being incompetent as it is not a complaint against the actual decision nor holding of the Tribunal; and that particulars (b)-(f) are argumentative and conclusive. The Appellant says ground 8 is directed against the holding or decision at pages 1438 – 1439 where the Tribunal said it believed the evidence of Petitioners witnesses that election did not take place in the ward and some units in the constituency. I have painstakingly considered particular (b) – (f) and I agree with the 1st, 2nd Respondents that these particulars are rather arguments and conclusions. They are bad particulars to support any ground of appeal. The virus infects the entire ground.

Accordingly ground 8 is hereby struck out.

In summary only ground 6, of the 8 grounds of appeal objected to, survives. Grounds 1, 2, 3, 4, 5, 7, and 8 have been struck out. Consequently only grounds 6 and 9 of the Appellant’s grounds of appeal have survived. This development will structurally affect the issues for determination. Only issues 3 and 5 nominated by the Appellant have survived. They are:-

3. Whether the Honourable Tribunal was justified in law when it discountenanced as unpleaded and an afterthought the aspect of the evidence of RW.8, the Returning officer for Ukwa West State Constituency concerning why INEC used result sheets with similar serial numbers during the election. (Ground 6 of the grounds of appeal).
4. Whether the judgment of the Honourable Tribunal was against the weight of evidence [Ground 9 of the grounds of appeal].

These are the issues I adopt for the determination of this appeal. I now consider them.

Issue No 3

At the hub of this issue is the evidence of RW.8, Ikedioha Okechukwu, the Constituency Returning officer, who was subpoenaed to testify. His deposition on Oath is exhibit BU wherein he averred inter alia;

8. That the distribution of the electoral materials was done by the Electoral officer that is the 4th Respondent.
9. That we observed that the result sheets forms EC8A (1) meant for the election to the Senate which was to hold on the 21st April, 2007 instead of that meant for election to State House of Assembly.
10. That we also observed that the result sheets provided by INEC were also brought in original and duplicate copies instead of only original copies.
11. That upon consultation between myself the Electoral Officer and INEC Headquarters at Umuahia, we decided to use the materials the way they were and that the word “Senate” be cancelled and replaced by the words “House of Assembly” and for the mutilation to be authenticated on both the original and duplicate copies for the duplicate copies also to be used as originals so that all the eighty units in Ukwa West LGA could receive result sheets in forms EC8A (1); in view of inadequate copies of the originals supplied.
12. That we thought it better to conduct the election with available materials instead of canceling same since the problem was peculiar to Ukwa West Local Government Area.

RW.8 testified on subpoena, Exhibit BT, as witness for the 1st Respondent – pages 1097 – 1101. He was the 5th Respondent in the petition. Mr. G. B. Obi of counsel settled the Reply of 2nd – 105th Respondents, including the 5th Respondent, to the petition found at pages 135 -140 of the Record.

The 1st Respondent/Appellant filed a separate and distinct Reply to the Petition. And in obedience to the practice Directions he also filed a list of intended witnesses which was accompanied by their sworn depositions. RW.8 was not one of 1st Respondent/Appellant’s listed witnesses. In paragraph 9 (iii) of the Petitioner’s Reply to 1st Respondent/Appellant’s Reply (p.394) the Petitioners aver:-

That all the forms EC8A (1) and 1st Respondent were irregularly procured and on their faces, contain features clearly pointing out the irregularities for example, a number of Unit results forms EC8A (1) submitted by the 1st Respondent contain same or have the same serial numbers are as stated in Table (A) herein under.

The same allegation is repeated in paragraph 9 (i) of the Petitioners Reply to 2nd – 105th Respondents’ Reply to the petition (p.428). The grouse of the 1st Respondent/Appellant is that the Tribunal rejected the evidence of RW.8 explaining why they used result sheets provided by INEC (2nd Respondent) which were “brought in original and duplicate copies instead of only original copies”, that the result sheets brought were for Senate election and that they had to improvise them by canceling Senate and replacing the words “House of Assembly” therefore. The Tribunal at page 1435 of the record in its judgment held:-

We specifically refer to the testimony of RW. 8 who testified with regard to the result sheets provided by the 2nd Respondent for the election. They were brought in original and duplicate copies instead of only the original copies which according to him prompted their decision to use result sheets the way they came instead of canceling the election. We regard this testimony at an afterthought as the learned counsel for the Petitioners has confirmed and we agree that the facts on the Issue were not pleaded and therefore any evidence led in Respect of same goes to no issue and us so hold.

Appellant’s Counsel, citing DEGACI OF DERE v. DEGACI OF EBWA (2006) All FWLR (pt.306) 786 at P.843; (2006) 7 NWLR (pt.979) 382 at p.447; submitted that in view of paragraph 9 (iii) of the Petitioners Reply to 1st Respondent Reply they were entitled to lead the evidence, as they did through RW.8, and that the decision of the Tribunal to reject the aspect of RW.8’s evidence (at p.1435) was wrong. The proposition of the law is that a party is entitled to lead evidence on any point raised in his opponents pleading, which though may not be in his pleading. That is an exception to the general rule that a party may not be allowed to lead evidence outside his pleadings. See DOKUBO v. OMONI (1999) 8 NWLR (pt.616) 647 at pages 664-665 following BAMGBOYE v. RAIMI OLORENWAJU (1991) 4 NWLR (pt.184) 132 at 155 and EMEGOKWUE v. OKADIGBO (1973) 4 SC 113 at 117. In view of this principle of law I am of the firm view that the 1st Respondent/Appellant was entitled to lead evidence on paragraph 9 (iii) of the Petitioners’ Reply to the Reply of the 1st Respondent, the Petitioner having made an issue of the 1st Respondent/Appellant submitting result sheets with irregularities on their faces and that a number of result sheets [forms EC8A (1)] the 1st Respondent submitted have the same serial numbers. See also DEGACI OF DERE v. DEGACI OF EBWA (supra). I agree with the Appellant on this issue.

The issue is hereby resolved in favour of the 1st Respondent/Appellant.

Issue No. 5

Is whether the judgment of the Tribunal was against the weight of evidence. On this issue Appellant has attacked the judgment of the Tribunal on several flanks namely: (1) that Exhibits C1 to C57 on which the Tribunal based its judgment in favour of the Petitioners were hearsay evidence since the Petitioners’ evidence was that some of the result sheets were allegedly handed over to pw.1, PW.3, or PW.15 by polling agents who did not testify. He relied on HASHIDU v. GOJE (2005) 13 NWLR (pt. 941) 1, and BUHARI v. OBASANJO (2005) 13 NWLR (PT. 603) 444. On this Appellant’s Counsel posited that once these results are expunged the only result left would be the one produced by INEC. Secondly, that the Tribunal suo motu awarded 3,150 votes to PPA and 8,592 to PDP, that no evidence was led by the Petitioners to support this award, and that the figures awarded are at variance with the figures the Petitioners themselves pleaded. Thirdly, that there was no proper evaluation of the evidence in respect of the findings, there was no election in Obuzor ward and some units mentioned in paragraph 14 of the petition (excluding Ozaa Ukwu ward). The evidence of PW.2 was said to be hearsay and therefore inadmissible evidence. It was submitted that the result in Exhibits G to G7 up to P to P.9 which tallies with the result produced by the Appellant and RW.9 ought to be believed and that the evidence of RW.2, RW.3, RW9, RW.10 and RW.11 ought to have been believed as they show conclusively that elections took place in Obuzor ward and some units in Ipu East ward, Ipu west and Asa South ward one hand and on the other hand that no election took place in Ozaa Ukwu ward.

To begin with it is trite and settled principle of law that an appellate court will not readily disturb the findings of fact made by the trial court or judge who had the opportunity of watching the proceedings and the witnesses live and first hand unless the findings are perverse or not supported by printed evidence. An appeal is in the nature of re-hearing in respect of all issues raised in the case.

In so doing the duty of an appellate court is merely to inquire into the ways the trial court tried and settled the dispute and not to re-open and re-try the case. See A. G. LEVENTIS v. AKPU (2007) 30 NSCQR 631 at 650. That is why the appellate Court does not usurp the function or duty of trial court or judge in the assessment of evidence or facts at the trial Court. What an appellant court has to decide is whether the decision of the trial Court was/is right and not the reasons for the decision. Per Ogbuagu, JSC in A. G. LEVENTIS v. AKPU (supra).

It was submitted that on authority of HASHIDU v. GOJE (supra) and BUHARI v. OBASANJO (supra) the Tribunal should not have used or acted on Exhibits C1-C57 because they were inadmissible hearsay evidence.

The reason for this is that the polling agents who collected them from the presiding officers and handed them over to PW.1, PW.3 and PW.15 through whom they were tendered in evidence did not testify. Because of that they are each said to be hearsay evidence. There is no doubt that the result sheets are statutory forms which by Section 64 of the Electoral Act the presiding officer is under a duty to make and hand over to polling agents upon their counter signing the same, and also to the police.

INEC documents as Exhibits C1-C57 are public documents [OJO v. ESOHE (1999) 5 NWLR (pt. 603) 444 at 453) As public documents by dint of Section 91(2) of the Evidence Act their makers need not be called to make them admissible in evidence. The makers against whom they are tendered are the 2nd-105th Respondents in the petition. These documents are not hearsay evidence but counter parts of originals which speak for themselves against their makers. See TERAB v. LAWAN (1993) 3 NWLR (pt.231) 569 at 590-593.

The admissibility of documentary evidence is one thing; the probative value to attach to the documentary evidence is another thing. See GBAFE v. GBAFE [1996] 6 NWLR [pt.455] 417 at 420. To ascribe probative value to documentary evidence, like all evidence admitted in the proceedings, the Court is enjoined to undertake proper evaluation of the totality of the evidence placed before it. See MOGAJI v. ODOFIN (1978) 4 SC 91. In NWOBODO v. ONOH [supra] the Supreme Court [per Sowenimo, JSC] held that election returns, whether primary, secondary or duplicate originals are relevant for the determination on merits of election petition.

The Petitioners tendered Exhibits C1-C57 and other results to convince the Tribunal to enter judgment in their favour. The 1st Respondent/Appellant also tendered various results that sharply contradict the results tendered by the Petitioners. It was therefore not enough for the Tribunal, without doing proper evaluation, to hold as it did, that it “considered the documentary evidence of the Petitioners in Exhibits C1- C57 and considers it as the lawful votes cast at the election.” Exhibits G-G7 up to P. P9 produced by the Appellant tally. The Appellant led strong evidence on Exhibits G – G7 up to P – P9 through RW.2, RW.9, RW.10 and RW.11 which the Tribunal did not evaluate. Evidence of RW.8, the Constituency Collation Officer, was to the effect that he cancelled all the unit results from the polling stations of Ozaa Ukwu ward on the ground that the results were snatched on the way and that they were not brought to the collation centre. The cancellation was neither challenged nor contested. It remains extant. These unit results from Ozaa Ukwu ward are part of Exhibits C1 – C57. It was therefore incumbent on the Tribunal to evaluate the totality of the evidence in order to ascribe any probative value to Exhibits C1 – C57 or any other result produced by the Petitioners.

The Petitioners had pleaded in the petition that there was no election in the 10 units of Obuzor ward because of violence, and snatching of electoral materials, voter’s intimidation and harassment. These are criminal acts. Commission of crime is therefore an issue, for which the standard of proof is one of proof beyond reasonable doubt by virtue of, section 138 (2) of Evidence Act. See NWOBODO v. ONOH (1984) 1 SCNLR 1. It appears from the judgment of the Tribunal that the only evidence the Tribunal acted or relied on to hold that there was no election in all the 10 units of Obuzor ward were the evidence of PW.2 and PW.8 [See pages 1438 – 1439 of record]. The PW.8’s evidence was not relevant for the issue of there being no election in the 10 units in Obuzor. The sworn deposition of PW.8 is at page 117 of the record. By paragraph 2 of the said deposition he was specifically “posted to Ipu East ward 008 in Umudioba 003” as the Petitioners’ agent for the election in dispute. Ipu East ward and Obuzor ward are two distinct wards. The Tribunal therefore was wrong to have used PW.8’s evidence, which was irrelevant for happenings in Obuzor ward, to hold that there was no election in the whole of Obuzor ward. The PW.8 was not in Obuzor ward at the material time. No body told the Tribunal that PW.8 was there at the material time.

The PW.2, Hon. Victoria Akanwa, was another witness the Tribunal relied on to hold that there was no election in Obuzor wards. I agree with the appellant and the 3rd – 105th Respondents’ Counsel that her evidence was hearsay and that unreliable. It cannot form the basis of the judgment given by the Tribunal. See EKPO v. THE STATE (2001) FWLR (pt.55) 154 at 464 – 465 and ADEKA v. VAATIA (1987) 1 NWLR (pt.48) 134 at 136 and 145. PW.2 had admitted under cross examination at page 889 of the record that she did not see the thugs because the alleged mayhem and that some other people, who did not testify, saw them. She also did not see the Appellant participate in the thuggery and the alleged violence or harassment of voters and election officials. She only saw him at the police station. The finding of the Tribunal, on the basis of the evidence of PW.2 and PW.8, that there was no election in all the 10 units of Obuzor is therefore perverse. The Petitioners did not, try credible evidence, and prove that there was no election in the 10 units of Obuzor ward. That allegation ought to be, and it is hereby, dismissed.

The petition further disputed results from 11 other units. Four of the units were in Ozaukwu ward where it was alleged that “all the materials meant for – the polling stations/units – were completely hijacked by PPA agents, armed thugs and chieftains from the ward” (page 13 of the record) and that in consequence there was no election in any of the four units namely Cps Owo Asa I polling station/unit, Cps Owo Asa II polling state/unit, Cps Umuiku polling station/unit and Amukwu Ezi village polling station.

It was also alleged that election materials for Obehie Central primary school polling station. Obehie village square polling station and Umudobia Cps polling station (3 polling stations) in Ipu East ward were hijacked. Other polling states/units where materials were allegedly hijacked were Umuokwulu village polling station of Ipu East ward, and three polling stations in Asa South ward. That is Ugwuati I polling station; Ugwuati II polling station and Ugwuati III poling station.

The three witnesses who testified for the Petitioners on the allegation that election materials for the three polling stations of Ugwuati in Asa ward were hijacked by armed thugs led by the Appellant were PW.4; PW.5 and PW.6. Their sworn depositions are respectively at pages 110, 111 and 112 of the record wherein each of them averred that immediately the electoral materials were handed over to the presiding officer’s respectively armed thugs led by the Appellant snatched them and fled. While PW.4 averred that the snatching took place around 11.00 a.m., The PW.5 and PW.6 averred that the materials were snatched around 11.07 a.m. in their respective stations. The PW.4, PW.5 and PW.6 all averred that the Appellant was among, or led, the armed thugs who came to the three polling stations and snatched the electoral materials. The oral evidence of the three witnesses is pages 892 – 898 of the record. All the three (3) are ad idem that the polling stations are very close to each other. The PW.4 was emphatic that the Appellant “did not come to our ward” that day. The PW.5 under cross examination admitted that he “did not even know” the person of the Appellant. The PW.6; on his part under cross-examination, was not sure whether he saw Appellant that day. Asked if he saw the Appellant with the thugs, PW.6’s answer was:

The 1st Respondent (Appellant) may be among the thugs but all I know when they began shooting every one ran away.

This allegation of armed thugs led by the Appellant coming with dangerous weapons to snatch electoral materials from the 3 polling stations in Ugwuati in Ash is not only a serious one, it is also criminal. It can not be proved by a less standard required by law or by these inconsistent or contradictory evidence of the PW.4, PW.5, and PW.6. When material witnesses as PW4, PW.5 and PW.6 give contradictory evidence on an allegation, criminal in nature, the totality of their evidence can not be said to have proved the allegation beyond reasonable doubt. They are, each, to be treated as unreliable witnesses. The court or the Tribunal can not pick and choose which of the, to believe or disbelieve: See BOY MUKA v. THE STATE (1976) 10 SC 305. I agree with the Appellant’s Counsel that in the circumstance the evidence of PW.4, PW.5 and PW.6 are each unreliable and ought not to be believed by the Tribunal in its finding that there was no election in three (3) polling stations in Ugwuati in Asa South ward. The law as, stated by Edozie, JSC in EZEMBA v. IBENEME (2004) All FWLR (pt.223) 1786 at 1816 E – G, is that-

No witness who has given on oath two materially inconsistent evidence is entitled to the Honour of credibility; such a witness does not deserve to be treated as a truthful.

In the face of materially inconsistent and contradictory evidence on oath of pw.4, PW.5 and PW.6 none of them deserved the honour of credibility or being treated as truthful witness. In spite of these the Tribunal at page 1439 of the record, believing the PW.4, PW.5 and PW.6 without evaluation or proper evaluation of their evidence, held that there was no election in the three [3] Polling Stations at Ugwuati in Asa Ward. The tribunal no doubt erred in this regard.

Ndidi Enyioko, PW.8, was the only witness the petitioners called to establish the allegation that there was no election at Umudiobia Polling station in Ipu East Ward 008. Issues were joined on the allegation. Without evaluating the evidence on this allegation, albeit properly, the Tribunal at 1439, lumping all the 21 polling stations where such allegations were made, held that it “believed the Petitioners’ witnesses – that there was no election in the aforesaid area”. The Tribunal had not demonstrably placed the cases of the parties on imaginary scale before it arrived on this conclusion. That is not proper evaluation: see MOGAJI v. ODOFIN [supra].

The PW.8’s sworn deposition is at page 117 of the record wherein it was averred that on the election day the 1st Respondent/Appellant leading a band of armed thugs drove into the polling station, Umudiobia CPS 003 in Ipu East ward 008; they came in two buses and a car, and that immediately the electoral materials were handed over to the presiding officer the Appellant and the thugs, shooting guns into the air, snatched the materials and fled in the vehicles they came with. He gave the time of incident as around 12.30 a.m! Cross-examined PW.8 said that the electoral materials were moved around by INEC officials around 12.30 p.m. and that he did not know how long it took them to distribute them because he too was moving around. He stated that I did not check the time to confirm the time of distribution. There was no voting

From deposition of the PW.8 on oath and his sworn oral evidence the Appellant and the thugs he led snatched the materials twelve hours (i.e. 12.30 am to 12.30 pm) before INEC officials distributed them to Umudiobia polling station. An incredible exaggeration? When a witness exaggerates, or he is flamboyant or reckless, he is not a credible witness. See AGBI v. OGBE 26 NSCQR 1257 at 1284; FATUNBI v. OLENLOYE 8 NSCQR [2] 810. The impression created by the PW.8 was that because the electoral materials were snatched before election commenced there was no election at Umudiobia polling station. However, paragraph 5 of his sworn deposition avers that the snatched materials included –

Ballot papers that were already used in election and no votes were returned from unit of Umudiobia CPS 003.

Definitely the witness who, in one breath on oath, asserts that there was election and no return from polling station was made because the used ballot papers were snatched should not be believed if in another breath he asserts that there was no election because the electoral materials were snatched by armed thugs immediately they were handed over to the Presiding Officer this is and before the election See EZEMBA v. IBENEME [supra]. The Tribunal was therefore wrong to hold, without evaluation or proper evaluation,that the petitioner proved that there was no election at Umudiobia CPS 003 polling station in Ipu East Ward 008.

The two other polling stations in Ipu East ward where no election was held are Obehie Central School and Obehie village square. The witnesses the petitioners called for these two polling stations are PW.10 [Obehie village square) and PW.11 (Obehie Central school 001). PW.10 [Onyeonoro Nwankro’s] deposition and the deposition on oath of PW.11 (Chief Ebere Chinke) are identical in every materials particular except as to the various times the thugs led by the appellant allegedly invaded the polling stations and snatched the electoral materials. Like the PW.8. The PW.10 and PW.11, ought to have been dismissed as untruthful witnesses if the Tribunal had properly evaluated their evidence. The substance of their depositions is that thugs led by the Appellant had snatched the electoral materials immediately they were handed over to the presiding officers. They each contradicted themselves when they averred on oath that the materials snatched included “ballot paper that were already used in the election and no votes were retuned” from each of the two polling stations.

Frakwen Rueben whose deposition is at pages 113 – 114, did not testify. His deposition is in respect of Umunkulu polling station of Ipu West Ward. He was not one of the witnesses the petitioners presented for cross examination. Apparently, the allegation in respect of Umunkulu polling stations had been abandoned. The evidence could neither have been considered nor believed. In any case as I earlier stated the Tribunal was in error when, without evaluation or proper evaluation of the conflicting evidence of the parties, it held at pages 1438 – 1439 that it believed the evidence of the petitioners and disbelieved the evidence of the 1st Respondent. Assuming the Tribunal evaluated the evidence of the PW.2 and PW8, it was perverse for the Tribunal to hold that the hearsay evidence of PW.2 was “impressive and unshaken in her conviction [as] to what she saw”. She did not see the Appellant snatch electoral materials or lead a bandit of armed thugs. Her evidence that she saw Sylvanus Nwaji at the police station goes to no issue. The substance of her evidence was hearsay. She admitted that fact. Her evidence was clearly unreliable. So also was the evidence of PW.8 that was full of inconsistencies on material facts. It was this manifestly unreliable evidence of PW.2 and PW.8 that the Tribunal founded its conclusion that there was no election in Obuzor ward, and Umudiobia polling station.

Ossy Nwankuro (PW.7) and B.I.A. Onwukwe [PW.9] were the only witnesses the petitioners called to prove the allegation that there was no election in CPS Owo Asa I polling station, CPS Owo Asa II polling station, CPS Umuiku polling station and Amukwu Ezi village Hall polling station – all in Ozaukwu ward. The petitioners allege that electoral materials for these polling stations were completely hijacked by PPA agents and armed thugs. The PW.7 in his deposition at Page 122 averred that the election at Umuiku CPS polling station was inconclusive because “thugs hired by Deacon Ralph Egbu – carried all the electoral voting materials away to unknown destination”. At page 118 PW.9 averred in his sworn deposition that “election was peacefully going on until thugs [of the Appellant] stormed the polling station of CPS Owo Asa I and in a commando style hijacked all the electoral voting materials and drove away in their two buses” at 11.30 am. PW.7 in his oral evidence admitted that he was aware that INEC did not declare any result in the entire award. The PW.9, cross examined, said the Appellant led the thugs that disrupted voting at CPS Owo Asa I polling station at 11.30 am and that though he did not carry any ballot box the Appellant was present when the thugs carried away the ballot box. There was no evidence in respect of Owo Asa II and Amukwu Ezi village Hall polling stations. There was also no specific evaluation and findings of fact in respect of the four polling stations in Ozaukwu ward where it was alleged that no election was conducted.

The Petitioners’ allegation that there was no election in the entire Obuzor ward and eleven [11] other polling stations/units in Ipu East ward, Ipu west Ozaukwu and Asa South wards, was not proved. The tribunal was therefore wrong to hold, as it did, that the allegation was proved. Since there is in law presumption of genuineness or correctness in favour of INEC results the Tribunal needs credible and convincing evidence from the petitioner in order to disturb such result. The duty of the court or Tribunal established by law is to render to everyone according to his proven claim, and nothing more. It can not give to a party a relief he has not proved. See AKAPO v. HAKEEM-HAKEEM (1992) 6 NWLR (pt.247) 266.

The appeal on these two issues succeeds. The decision of the tribunal setting aside the return of the 1st Respondent/Appellant’s by INEC is hereby reversed. The return of the 1st Respondent/Appellant by the INEC is hereby affirmed. The 1st Respondent is hereby ordered to pay, as costs, the sum of N30, 000, 00. to the Appellant.

CA/PH/EPT/288A/08

This appeal is at the instance of INEC and its officials 2-104th Respondent in the petition. They claim to be aggrieved by the decision of the Tribunal nullifying the return of the 1st Respondent as the person elected on 14/4/2007 in Ukwa West constituency of Abia State to represent the constituency in the Abia State House of Assembly. The parties have exchanged briefs of arguments.

On 26/9/2008 the 1st and 2nd Respondents filed notice of preliminary objection to the appeal on the ground that –

The appeal of the 1st – 104th Appellants is grossly incompetent and an abuse of court process in that they, as the bodies [sic] that conducted the said election, have no right of appeal, but should remain neutral and independent. They can only defend a petition and respond to an appeal

They referred to three decisions of this court on the point, namely:

i. DR. CHRIS NGIGE v. MR. PETER OBI [2006] 14 NWLR [pt.999] 1 at 224 A-E.

ii. HARUNA v. MODIBO [2004] 1b NWLR (pt.900) 487 at 569 and 573

iii. HON. EMEKA STANLEY v. BARR. UZOMA NKEM ABONTA [unreported No. CA/PH/EPT/157/2008 of 14/7/2008]

On the day for the hearing of the appeal H. Balogu, Esq of counsel for the 1st and 2nd Respondents, adopting the above ground for the objection, urged that the appeal be struck out since it is incompetent. Counsel further argued that the right of appeal conferred by section 246 of the constitution is not exercised at large and that a party appealing has a duty to show that the judgment appealed had adversely affected his interest. Mr. Balogu further contended that it is not enough for the appellant to say that he was a party to the petition and that INEC, though a party to the petition must show on the aforementioned authorities, that they are adversely affected by the decision of the Tribunal in order to exercise their right of appeal.

Mr. Obi for the Appellants submitted, in reply to the objection, that 1st – 104th Appellants were parties to the petition at the Tribunal as respondents and that by virtue of section 246 (1) (b) of the 1999 Constitution the Appellants have unfettered right to appeal against the decision of the Tribunal in the petition they were respondents. Commenting on NGIGE v. OBI (supra) Mr. Obi submitted that the decision did not hold that INEC has no right of appeal but merely advised that INEC in election matters and disputes should always remain neutral and unbiased. He further contended that there is a distinction between right of appeal and the manner the right is exercised, and that what was condemned in NGIGE v. OBI (supra) was the manner the right of appeal was exercised. The grouse of the appellants in this case is that INEC posits that the Tribunal was wrong in the determination of the issues submitted to it for decision, and that if a Tribunal erred in law in its decision INEC has right of appeal in the circumstance as in HARUNA v. MODIBO [supra] where INEC’s appeal was allowed. He urged that we reconsider our decision in STANLEY v. ABONTA [supra] where the decision was allegedly swayed by the provisions of paragraph 14 of the Third Schedule to the 1999 Constitution. He finally submitted that in election natters the provisions of a schedule to the constitution should not be construed or interpreted to override the plain words of the constitution. For this ACTION CONGRESS v. INEC (2007) 12 NWLR (pt.1048) 222 at 290 G-H was cited.

Mr. Ugboduma for the 3rd Respondent associated himself with the submissions of Mr. Obi and further added that courts are advised against whittling down rights conferred by the constitution. He referred to ENYI BROS FOOD PROCESSING CO. LTD V. NDIC [2007] 9 NWLR (pt.1037) 635 at 658 B – C; and NWANA v. FCDA (2007) 11 NWLR [pt.1044] 59 at 84 F. I know the constitutional right the two counsels are referring to. It is the right of appeal under section 246 (1) (b) (i) of the 1999 Constitution that provides –

246 (1) An appeal to the Court of Appeal shall lie as of right from –

(b) decisions of the National Assembly Election Tribunals and Legislative House Election Tribunal on any question as to whether –

(i) any person has been validly elected as a member of – a House of Assembly of a State under this Constitution.

In addition to the foregoing section 243 of the same constitution demands that the right of appeal shall be exercisable in civil proceedings at the instance of the “person having an interest in the matter” and in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.

The decision the subject of this appeal is the decision of the Governorship and Legislative House Election Tribunal sitting at Umuahia that nullified the election of the 1st Respondent in the petition and this appeal. Prima facie INEC, being a party to that election petition at the lower Tribunal has right of appeal against the decision of the said Tribunal. One fact not denied or disputed by all parties to this appeal is that INEC, the present appellants, was the body constituted by law and the constitution to conduct the election, the subject of this appeal. To put it in other words, they are the kingmakers. The objection to this appeal is that this appeal is an abuse of the process of this court and therefore it is incompetent. Let me pause here a while in order to consider other germane issue[s].

Section 248 of the Constitution empowers the president of this Court to “make rules for regulations, the practice and procedure of the Court of Appeal”. Pursuant to this power the President of the Court of Appeal made the Court of Appeal Rules. Every appellant who does not observe or comply with order 6 of the Court of Appeal Rules will have his appeal struck out for being incompetent. See UMAZURIKE v. A.G. OF FED. [2007] 8 NWLR [pt.1035] 1 at 17. Order 6 of the Rules includes Form 3 – the Notice of Appeal, made pursuant to Order 6 Rule 2. Paragraphs 4 and 5 of Form 3 requiring the appellant to disclose the Relief sought from the Court of Appeal by the appeal and the person directly affected by the appeal are intended for the appellant to disclose his interest or locus standi in the appeal. In the instant appeal in paragraph 4 of the Notice of Appeal, particularly at page 1473, the Appellants state the relief they seek of the Court of Appeal to be –

“That the decision of the lower Court nullifying the election of the 1st Respondent and declaring the 1st Petitioner as elected in the House of Assembly Election for Uhwa West Constituency be set aside”.

The persons directly affected by the appeal as declared in paragraph 5 of the Notice of appeal [Form 3] in this appeal are the petitioner and the 1st Respondent in the petition and not all the other parties to the election petition. What therefore is INEC interest in this appeal? I see from paragraph 4 of the Notice of Appeal, earlier reproduced, that INEC has no direct in this appeal. They are rather pursuing the cause of the 1st Respondent in the election petition. In the circumstance it is my firm opinion that the present appeal of INEC is an abuse of their right of appeal vested by dint of section 246 (1) (b) [i] of the Constitution.

I agree with Mr. Ugboduma, on authority of ENYI BROS FOODS PROCESSING CO. LTD v. NDIC (2007) 9 NWLR (pt.1039) 216 at 253 G – H; EDJEKPO v. OSSAI (2007) 8 NWLR (pt. 1037) 635 at 658 B – C, and NWANA v. FCDA (2007) 11 NWLR (pt.1044) 59 at 84 F that it is no business of the Court to whittle down a right vested or conferred by the Constitution in the guise of interpretation or construction. That is not the situation in this appeal. The issue here is whether an appellant, in a purported exercise of his constitutional right of appeal, can abuse the same?

An abuse of process comes in various ways. For instance using the lawful process of court for a wrong motive or purpose is an abuse of the process. It was held by this Court [per Tijjani Abdullahi, JCA] in HON. EMEKA STANLEY v. BARR. UZOMA NKEM ABONTA (unreported CA/PH/EPT/157 & 157 a/08 OF 14/7/2008) that INEC, in a guise of exercising its constitutional right of appeal, should not be at liberty to use tax payers’ money to protect and project the interest of a candidate. That is exactly what INEC is doing in this instant appeal. The judgment of the Tribunal contains no unfavourable remarks or comments about how INEC and its officials performed their function as a neutral umpire in the conduct of the polls the subject of this appeal. Therefore, as observed by Ogebe, JCA (as he then was) in HARUNA v. MODIBO (supra) at page 569 –

It is not expected of (INEC) to appeal from election cases but to leave the candidates to fight their battle. However, in this particular case the tribunal made unfavourable remarks about their performance in conducting the polls which might have justified their appeal to this court to clear their names.

It is in the interest of our electoral process that INEC and its officials should remain as neutral as possible in election cases as their primary responsibility is to conduct free and fair elections regardless of who wins.

INEC should not, and they are not expected to brood contumaciously that the Tribunal nullified the election of 1st Respondent and declared the 1st petitioner the winner contrary to their own declaration at the polls and use that as their locus standi in the appeal they had filed. This issue was extensively discussed in NGIGE v. OBI [supra] at pages 219 – 221 by Omokri, JCA. The right of appeal conferred by section 246 (1) (b) of the Constitution has to be read with section 243 (a) of the same constitution. The right of appeal does not exist in a vacuum. There must be in existence an appeal-able decision made by a court or Tribunal that directly affects the appellant’s interest. For this appeal INEC and its officials must show that the Tribunal made an order that prejudicially affects their interest. See A.G. FED v. ANPP [2003] 15 NWLR (pt.844) 600, I EPR 312 at 340; OKONKWO v. MODE [NIG] LTD (2002) 14 NWLR [pt.788] 588 at 600 – 601.

Merely being a party to the proceedings does not automatically give or vest the standing to appeal the decision in the proceedings. Appropriately apposite is the dictum of Omokri, JCA in NGIGE v. OBI [supra] at page 220 that-

Parties to proceedings can not appeal a decision arrived thereat which does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is such a grievance he can not appeal against a judgment which has not affected him. A person entitled to appeal is a person aggrieved by a decision, i.e. a person against whom a decision has been pronounced which deprives him of some right. See MOBIL PRODUCING (NIG) LTD v. MONOKPO (2003) 18 NWLR (pt.852) 436; AKINBIYI v. ADELABU [1956] SCNLR 109 und U.B.A. PLC v. ACB (NIG) LTD (2005) 12 NWLR (pt.939) 232 at 262.

I do not think INEC and its officials, as neutral umpire in the election the subject of this appeal, have been able to show that any legally cognizable interest in this appeal vests in them. They therefore do not qualify as persons aggrieved with locus standi to file this appeal. The appeal, in my view, is vexatious and incompetent. The appeal is accordingly struck out. INEC, a statutory body charged with the responsibility of conducting free and fair elections do not have the right to use public resources to advance the cause of politicians or private individuals, even if they feel strongly that the election they conducted was impeccable, and ought not to have been nullified by the Tribunal. As kingmakers INEC should regard itself functus officio once, for good or for bad, a return from the poll it had conducted had been made or declared. Descending into the arena to advance the cause of a candidate smack of conduct unbecoming of a neutral and independent electoral body.

The objection is allowed and hereby sustained. The appeal (No. CA/PH/EPT/288A/03) of INEC and its officials is hereby struck out for being incompetent. As earlier stated appeal No. CA/PH/EPT/228/08 Succeeds with costs at N30, 000.00 to the Appellant therein, and the return of the said appellant by INEC is hereby affirmed as the judgment of the Tribunal is hereby set aside.

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Other Citations: (2008)LCN/2985(CA)